Good morning. President Donald Trump's long-shot legal battle against the election's outcome faces a crucial hearing in Pennsylvania as more of his lawyers ask to leave the case, lawyers for two Deutsche Bank traders say holdout jurors' fears of COVID-19 tainted their fraud trial, and more states because of the pandemic are nixing further jury proceedings. That vaccine can't come fast enough!
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Trump lawyers ahead of key hearing seek to leave case as one complains of harassing calls
President Donald Trump's long-shot legal bid to derail President-elect Joe Biden's victory faces a key hearing today. And ahead of it, three more of his campaign's lawyers have left the case, including an attorney who said she faced harassing emails and phone messages due to her work for it.
Jan Wolfe and David Thomas report that Philadelphia attorney Linda Kerns and two Texas lawyers - State Senator Bryan Hughes and John Scott, a former Texas deputy attorney general - late Monday asked to withdraw from the lawsuit, which seeks to block Pennsylvania from certifying Biden, a Democrat, as the winner.
Their move came after Kerns complained about harassing calls, including an "abusive" voicemail from an associate at Kirkland & Ellis, which represents Pennsylvania Secretary of State Kathy Boockvar in fighting the lawsuit. Boockvar and Kirkland say the associate behind the inappropriate call isn't involved in the case.
U.S. District Judge Matthew Brann in Williamsport, Pennsylvania, has allowed the Texas lawyers to leave but hasn't ruled on Kerns. The Texas attorneys joined the case only after the law firm Porter Wright withdrew last week. The campaign then narrowed the case on Sunday to allege Democratic-leaning counties illegally allowed voters to fix errors in their mail-in ballots. Learn more.
Ex-Deutsche Bank traders say COVID-19 fears led to guilty verdicts from holdout jurors
Were holdout jurors weighing whether two former Deutsche Bank traders engaged in fraud coerced into finding them guilty to avoid the risk of COVID-19 exposure by continuing to deliberate any longer?
That's what lawyers for the traders, James Vorley and Cedric Chanu, claim in motions asking U.S. District Judge John Tharp in Chicago to grant them a new trial or acquit them following their convictions in September, Jody Godoy reports.
The case not only tested whether the DOJ could secure convictions of bankers accused of a fraudulent trading practice known as "spoofing," but it also spotlighted whether the federal courts could safely conduct jury trials during the coronavirus pandemic.
Their attorneys - Dechert's Roger Burlingame for Vorley and Ropes & Gray's Michael McGovern for Chanu - argued that a key error Tharp made during the trial was not declaring a mistrial when jurors sent notes indicating they were split 9-2.
Defense lawyers said while making a jury continue deliberations may have been fair in ordinary times, doing so after one of the 12 jurors had been hospitalized with COVID-like symptoms coerced the holdouts "to relinquish their firmly held beliefs." Read more about how the court conducted the trial.
Industry buzz
- Global law firm Dentons said it has formally combined with the fourth-largest law firm in Utah, Durham Jones & Pinegar. That firm will now become Dentons Durham Jones Pinegar. (Reuters)
- U.S. District Judge Algenon Marbley in Columbus, Ohio, during a hearing said he will consider how diverse three plaintiffs' firms are when determining which should serve as lead counsel in a proposed shareholder class action against utility FirstEnergy Corp. Those firms are Berman Tabacco, Robbins Geller and Bleichmar Fonti & Auld. (Reuters)
- SEC Chairman Jay Clayton will step down from his position at the end of the year. The securities regulator did not say what Clayton would do post-government. He was previously a partner at Sullivan & Cromwell. (Reuters)
- Employment law firm Littler Mendelson and two of its lawyers are being accused in a lawsuit filed in federal court in Alexandria, Virginia, of misappropriating intellectual property from the employer association Center for Workplace Compliance, where the two attorneys previously worked. Morgan Lewis filed the lawsuit for the company. (The American Lawyer)
- A Florida lawyer who represented three men who accused two NFL players of robbery and assault was charged with attempting to extort about $800,000 from one of the athletes. The lawyer was William Dean, the managing partner of Florida-based Ford, Dean & Rotundo. (New York Times)
- Legal services provider Epiq Systems has acquired Hyperion Global Partners, a legal business and technology consultancy aimed at corporate in-house legal departments and law firms. (Reuters)
New Jersey, Delaware latest states to halt jury trials amid COVID-19 surge
The state court systems in New Jersey and Delaware have become the latest to re-suspend jury trials in response to the skyrocketing numbers of COVID-19 cases nationally, Sara Merken reports.
Delaware's courts are reverting to an earlier phase of their four-stage reopening plan, under which courthouses will remain open to the public but with just 50% of their staffing levels and building capacity, down from 75%. The courts had just moved into the other phase on Oct. 5, allowing jury trials to resume.
In New Jersey, where limited in-person proceedings including socially distanced jury trials and in-person grand juries resumed in September, the New Jersey Supreme Court suspended further in-person jury trials and grand jury sessions.
"The increasing rates of new cases, hospitalizations and deaths make it impracticable and unsafe for certain in-person court events to continue at the level reached during the past few months," Chief Justice Stuart Rabner wrote in an order.
The moves follow decisions by court systems in other states last week including New York, Maryland, Texas, New Mexico, Alaska and Wyoming to hit the brakes on jury trials. Learn more about the restrictions.
Coming up today
- Purdue Pharma's lawyers led by Davis Polk's Marshall Huebner will ask U.S. Bankruptcy Judge Robert Drain in White Plains, New York, to approve its proposal to resolve the DOJ's civil and criminal investigations into the OxyContin maker's marketing practices. The deal, which includes a guilty plea from the company and approximately $8 billion in penalties, is opposed by some states and opioid victims.
- Air Transportation Association of America, an airline trade group repped by O'Melveny & Myers' Anton Metlitsky, will urge the 9th Circuit to revive its lawsuit claiming the state of Washington's paid sick leave law is unconstitutional and is preempted by the federal law designed to deregulate the airline industry.
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A Missouri state lawmaker will ask the 8th Circuit to overturn a ruling finding that she violated the First Amendment rights of a constituent by blocking him on Twitter. The case against Representative Cheri Toalson Reisch, a Republican, raises issues similar to those aired in lawsuits over President Donald Trump's blocking of Twitter users.
- Morgan Stanley will urge the New York Court of Appeals to overturn a decision that would allow Deutsche Bank, in its role as trustee to residential mortgage-backed securities at the heart of 2008’s financial crisis, to pursue more than $495 million in damages on allegations the bank knowingly bundled and sold bad loans. Morgan Stanley's lawyers, including Davis Polk's Brian Weinstein, argue that a lower court wrongly concluded that allegations of gross negligence could render unenforceable a contractual provision that limited the remedy to repurchasing affected loans. MoloLamken's Steven Molo will argue for the trustee.
- A California couple is slated to be sentenced after admitting they paid $250,000 to fraudulently help their daughter gain admission to the University of Southern California as a fake volleyball recruit. Federal prosecutors in Boston are asking U.S. District Judge Nathaniel Gorton to sentence Diane Blake and Todd Blake to six weeks and four months in prison, respectively. Duane Morris' Stephen Sutro represents them.
"There's not a single neighborhood in the entire city that is ever going to want this."
U.S. Attorney William McSwain, during a rare appearance by the top federal prosecutor in Philadelphia as the lawyer arguing an appeal to the 3rd Circuit, as he urged the three-judge panel to conclude that a nonprofit called Safehouse could not legally launch what would be the the nation's first supervised drug-injection site in the city. Safehouse's pro bono lawyer, DLA Piper's Ilana Eisteinstein, countered that its "purpose is to prevent overdose death." (Reuters)
In the courts
- Federal prosecutors in Boston say that former Harvard University fencing coach Peter Brand accepted more than $1.5 million in bribes from businessman Jie "Jack" Zhao in exchange for helping his two sons get into the Ivy League school as athletic recruits. Douglas Brooks of Libby Hoopes Brooks, Brand's lawyer, said he "did nothing wrong in connection with their admission to Harvard." Zhao's lawyer, Quinn Emanuel's William Weinreb, said he "adamantly denies these charges." (Reuters)
- The Wisconsin Supreme Court heard arguments over whether Democratic Governor Tony Evers exceeded his authority by issuing a mask mandate for the state. The court in May struck down his "safer at home" order issued to combat the COVID-19 pandemic, when it was controlled 5-2 by conservatives, but it is now just 4-3, and one of the conservatives had sided with liberals in saying the order should be upheld. (AP)
- The American Federation of Government Employees cannot pursue a lawsuit challenging President Donald Trump's appointments to a federal labor panel, because the union has already complied with an order from the agency that it was challenging, U.S. District Judge Richard Leon in D.C. ruled. (Reuters)
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The University of California system has agreed to pay $73 million to resolve claims by thousands of women who were patients of Dr. James Heaps, a former UCLA gynecologist charged with sexually assaulting several patients. Elizabeth Kramer, a lawyer for the plaintiffs at Erickson Kramer Osborne, said the settlement if approved by a federal judge in Los Angeles would "provide real and immediate compensation to thousands of women." (New York Times)
- Hildy Sastre, a lawyer for GlaxoSmithKline at Shook Hardy & Bacon, during a hearing before a federal judge in Boston, argued the FDA's recent rejection of a warning label that says taking the anti-nausea drug Zofran during pregnancy can cause birth defects should mean that hundreds of lawsuits by women against the company "can no longer continue to exist." (Reuters)
- A 10th Circuit panel signaled it would likely order Southeastern Oklahoma State University to reinstate with tenure a transgender English professor, who had won a lawsuit claiming she was forced out of position because of her gender identity. (Reuters)
- Ruby Tuesday is entitled to $27 million sitting in executive pension and deferred compensation trusts to pay the restaurant chain’s general creditors in its Chapter 11 case, U.S. Bankruptcy Judge John Dorsey in Delaware ruled. Pachulski Stang Ziehl & Jones' Richard Pachulski is lead counsel to the company. (Reuters)
Industry moves
- Brian Stimson, the former acting general counsel and immediate past principal deputy general counsel for the U.S. Department of Health and Human Services' Office of the General Counsel, is joining McDermott Will & Emery's health practice as a partner in its Washington and Atlanta offices in January. (Reuters)
- William Anthony, the former co-chair of Jackson Lewis, joined Blank Rome's New York office as a partner in its labor and employment and class action defense groups. (Legal Intelligencer)
- Paul Hastings brought on energy, environmental, and infrastructure lawyers Chris Carr and Navi Dhillon as partners in its San Francisco office. They joined from Baker Botts. (Reuters)
- Paul Hoffman joined Bryan Cave Leighton Paisner as a partner in its banking practice group in Chicago. He was previously at Vedder Price. (Bryan Cave)
- John Mancebo, who chaired Tressler LLP's labor and employment practice group, joined Kaufman Dolowich & Voluck as a partner in its New York office. (Kaufman Dolowich & Voluck)
Columnist spotlight: Will Biden's DOJ picks create progressive justice reform?
President-elect Joe Biden's platform to improve the criminal justice system represents a drastic shift. While he does not support cutting police departments' funding, he has called for ending the death penalty, mandatory minimums for non-violent crimes, and incarceration for drug use alone. But Hassan Kanu in his latest column says that based on the current names being floated to serve as U.S. attorney general and the people picked for his DOJ agency review team, "We're still likely to see a centrist and incrementalist approach to criminal justice reform from the incoming administration." A leading contender for AG is former Deputy Attorney General Sally Yates, a career prosecutor. Yet some criminal justice advocates have called for Biden to appoint a civil rights attorney or public defender, "someone who arguably has greater perspective regarding the defense and prevention side of criminal justice." Check out Kanu's full column.
Check out other recent pieces from all our columnists: Alison Frankel, Jenna Greene and Hassan Kanu.
Lawyer speak: How to protect IP against COVID-19 scammers leveraging social media
A program adopted by the U.S. Patent and Trademark Office in June to prioritize examining trademark applications for COVID-19 medical products and services "provides a justifiable shortcut to examination for many marks obviously worthy of prioritization," Marshall, Gerstein & Borun attorneys Maureen Beacom Gorman and Kelley Gordon wrote in a recent article. That program reduces the typical examination time for new trademark applications by about two months. But Gorman and Gordon said "not all COVID-19 related applications will be so worthy as to reach registration, never mind on a prioritized basis." The PTO has received a massive influx of COVID-19 related trademark applications - about 1,430 by Oct. 26. That surge increases the risk of rejection based on a likelihood of confusion with an earlier registered trademark or risk of suspension for prior filed applications, Gorman and Gordon wrote. Learn more about the program.
Correction: Monday's newsletter misstated the state in which Missouri Representative Cheri Toalson Reisch serves as a lawmaker.
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